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Probate is a legal proceeding where the affairs of someone who has died are taken care of under the supervision of a court. Probate is often the only way that legal titles of most assets will pass from the deceased person (the “decedent”) to their family. The decedent’s will provides a road map of how they wanted things handled. Even if no will was made or is available, the court proceeding is still necessary.
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What Is Probate?
Probate evolved under the laws of England and later the United States to allow for the orderly administration of the affairs of the decedent. It’s easy to imagine that in the past, family, friends, and creditors of the decedent may have fought over that person’s assets.
Sadly, that same risk of conflict still exists today. Fortunately, the state of Oklahoma has some very effective laws to ensure that the decedent’s assets pass to his/her heirs according to the decedent’s will. If the decedent had no will, then Oklahoma law determines who will receive the assets and how the decedent’s estate will be administered.
What Can I Expect From a Probate Attorney?
There are many things that your probate lawyer will help you with during the process, including:
- Talking with beneficiaries involved
- Filling out the petition of probate
- Arranging property appraisals
- Filing the last income tax return of the deceased person involved
- Ordering a death certificate
- Filing the will with the probate court
What Happens in a Probate?
A probate is begun only when a family member or friend of the decedent asks a court to start the process. It does not happen automatically. This is an important point to remember: Even if the decedent had a will, the probate is necessary to get things started in handling the decedent’s estate.
In the probate, the court will appoint a person to handle the decedent’s estate. This person is called the personal representative (formerly called an “executor” or “administrator”). The personal representative usually hires a lawyer to assist in the probate process – preferably a lawyer who has a great deal of skill and experience with handling probates.
What Does the Personal Representative Do?
The personal representative will gather the decedent’s assets, real estate, bank accounts, vehicles, personal property, etc., and keep all of those items safe and secure during the probate proceeding.
The personal representative will then arrange to have all of the decedent’s bills, debts, and taxes paid from the decedent’s assets. Once this is done, the personal representative will then distribute the balance of the decedent’s assets to the heirs.
There are often many other matters that must be addressed in the decedent’s affairs, such as closing a business, selling some estate assets, etc. Sometimes these affairs can prove to be rather complex – hence the need for an experienced probate attorney.
All of this happens under the watchful eye of the court. It’s important to understand that the court is there to make sure that the estate administration is conducted according to the decedent’s will and in compliance with Oklahoma law.
When Is Probate Needed?
Along with making certain that bills and taxes get paid, probate also involves handling (what lawyers call “administering”) the decedent’s property. Probate is needed, and is mandatory, whenever there is no other mechanism already in place to administer the decedent’s property.
Before discussing administration, first, a quick word about “property.” Lawyers refer to all the items that the decedent (or anyone else, for that matter) owns as property. Most laymen are accustomed to using the word “property” to refer to land (lawyers call it real property). But the term property also refers to many other items, such as clothes and furniture, investments and bank accounts, livestock and pets, and even intellectual property (patents and copyrights).
The probate must deal with all of these kinds of property, not just the real estate owned by the decedent. It is true that real estate owned by the decedent triggers a majority of the probates in Oklahoma. Yet, it is common that probates are necessary when the decedent owned only personal property.
If an item of property was owned solely in the name of the decedent, the probate is commonly the only way to transfer ownership from the decedent’s name to his or her heirs. One of our attorneys at McBride & Associates can advise you whether a probate will be necessary in your case.
Not every asset must go through a probate to pass on to the surviving family member, friend, or other heir.
Here are few items that maybe won’t have to go through probate (but exceptions exist!):
- Houses owned in joint tenancy with a spouse or another person who survives.
- Co-owned banking or investment accounts.
- Items that have a named beneficiary, such as bank account with a pay-on-death beneficiary.
- Life insurance (naming a surviving beneficiary).
There are few other exceptions, but the above list is the most common items that need not pass through probate. The above items are said to pass as a matter of law. Yet, even if only one significant item owned by the decedent cannot pass to the heirs as a matter of law, then a full probate is necessary.
Sometimes surviving family members are not aware that a probate is necessary and don’t bother beginning one right after the decedent has died. They then find out later that a probate must be done – sometimes at an inconvenient time and circumstances.
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Here’s an Example
Fred died many years ago; then after his wife Velma died, their kids Pebbles and Bam-Bam continued living in the family home. Today, Pebbles is engaged to be married and plans to move in with her new husband-to-be, Elroy Jetson. Bam-Bam, a rock drummer, plans to go on tour with his band, and decides to sell the house.
Bam-Bam hires a realtor to sell the house for him and Pebbles. The realtor finds a buyer, but a few days before closing, someone at the title company calls Bam-Bam and tells him that he CANNOT sell the house. Bewildered, Bam-Bam asks “why?” – he’s told it is because, simply put, neither he nor Pebbles owns the house!
He is then told that the house is still owned by his deceased parents, and that he must speak to a lawyer. Bam-Bam meets with his lawyer who explains that the house was co-owned by Fred and Velma. The house passed to Velma upon Fred’s death. But, explained the lawyer, no legal mechanism automatically passed ownership of the house from Velma, upon her death, to him and Pebbles.
The lawyer tells Bam-Bam, that the only way for him and Pebbles to close on the pending sale of the house is to probate Velma’s estate, and transfer legal title to them. Bam-Bam is rightly worried that the buyer of the house may lose interest and go away if the probate takes a long time. The lawyer tells Bam-Bam that he should have come to see him right after Fred died and again after Velma died.
The lawyer explains that even the simplest estates handled by the best probate attorneys can take several months. But the lawyer also explained that a skilled probate attorney knows of ways to not only get the probate started quickly, but also to possibly not delay closing on the house sale at all. That is exactly what happened, and all was well in Bedrock, Oklahoma.
From this example, you can see that it is important to visit with one of our attorneys at McBride & Associates soon after your loved one passes away. It would be a mistake to just assume that no action is necessary. It is far better to find out for sure what needs to be done. Sometimes problems can arise if the probate and other action in handling a deceased person’s estate is not begun soon enough.
There are only a few items that you should make an effort to locate prior to meeting with our Oklahoma City estate planning lawyers at McBride & Associates to discuss a probate case. You should bring the original will and a death certificate with you, if at all possible.
Our Oklahoma City and Edmond probate attorneys will evaluate your circumstances, explain all of your options, and make recommendations on how you should proceed.